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RECOGNITION OF FOREIGN DIVORCE IN

THE PHILIPPINES
A divorce, or legal dissolution of a marriage, is the ending of a valid marriage between
a man and a woman returning both parties to single status with the ability to remarry.

GENERAL RULE

Generally, absolute divorce between two citizens of the Philippines is not recognized in
the Philippines (Garcia v. Recio, G.R. No. 138322, October 2, 2001). Hence, if the
contracting parties who are citizens of the Philippines get validly married in the
Philippines or anywhere in the world, their status, in so far as the Philippines is
concerned, as married persons follow them anywhere in the world. They can only sever
their relationship as husband and wife if anyone of them has a cause of action to declare
the marriage void or to annul the marriage. Divorce initiated by a Filipino is against
public policy (Cang v. Court of Appeals, 296 SCRA 128).

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad.

EXCEPTION TO THE GENERAL RULE

No divorce is allowed in the Philippines, but a marriage between a Filipino and a


foreigner is a special case. The Philippines will recognize the divorce of a
Filipino obtained abroad by the foreign spouse. This is embraced in the provision of
the second paragraph of Article 26 of the Family Code of the Philippines, providing:

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her
to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

Under Article 26, Family Code of the Philippines, in mixed marriages involving a
Filipino and a foreigner, it allows the former to contract a subsequent marriage in case the
divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.
In other words, it is a condition sine qua non for the operation of the second paragraph of
Article 26 that the divorce must have been obtained by the alien spouse and not by the
Filipino spouse. The provisions will not therefore apply if it is the Filipino spouse who
obtains the decree of divorce.183 In such a situation, it is article 15 of the new Civil Code,
in relation to article 17, which will govern and not article 26 of the Family Code.

The case of Van Dorn v. Romillo Jr. (139 SCRA 139, October 8, 1985) and Pilapil v.
Ibay-Somera (174 SCRA 653, June 30, 1989) have authoritatively applied this provision
in mixed marriages between a Filipino and a foreigner. A divorce obtained abroad by a
couple, who are both aliens, may be recognized in the Philippines, provided it is
consistent with their respective national laws.

However, before a foreign divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity to the
foreign law allowing it. A divorce obtained abroad is proven by the divorce decree itself.
The best evidence of a judgment is the judgment itself. Rule 130 of the Rules on
Evidence provides that when the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself. The decree purports
to be a written act or record of an act of an official body or tribunal of a foreign country.
Under Sections 24 and 25 of Rule 132 of the Rules on Evidence, a writing or document
may be proven as a public or official record of a foreign country by either:

(1) an official publication or

(2) a copy thereof attested by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be (a) accompanied by a certificate
issued by the proper diplomatic or consular officer in the Philippine Foreign Service
stationed in the foreign country in which the record is kept and (b) authenticated by the
seal of his office.

Philippine courts cannot take judicial notice of foreign laws. Like any other facts, they
must be alleged and proved. Foreign marital laws are not among those matters that judges
are supposed to know by reason of their judicial function. The power of judicial notice
must be exercised with caution, and every reasonable doubt upon the subject should be
resolved in the negative.

Given a valid marriage between two Filipino citizens, where one party is later naturalized
as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry,
can the Filipino spouse likewise remarry under Philippine law? In this situation, may the
second paragraph of Article 26 be applicable?

This question was answered in the affirmative by the Supreme Court in the recent case of
Republic vs. Orbecido III. In this case, the Supreme Court held that taking into
consideration the legislative intent and applying the rule of reason, paragraph 2 of Article
26 should be interpreted to include cases involving parties who at the time of the
celebration of the marriage were Filipino citizens, but later on, one of them becomes
naturalized as a foreign citizen and obtains a divorce decree. In such a case, the Filipino
spouse should likewise be allowed to remarry as if the other party were a foreigner at the
time of the solemnization of the marriage, for to rule otherwise would be to sanction
absurdity and injustice. The reckoning point is not the citizenship of the parties at the
time of the celebration of the marriage, but their citizenship at the time a valid
divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

Republic vs. Orbecido III [472 SCRA 114 (2005)]

FACTS: In 1981, Cipriano Orbecido III married Lady Myros M.


Villanueva in Ozamiz City. In 1986, Lady Myros left for the United States
and a few years later, she had been naturalized as an American citizen.
After she was naturalized, she obtained a divorce decree in the United
States and then married an American citizen. Cipriano then filed with the
trial court a petition for authority to remarry invoking paragraph 2 of
Article 26 of the Family Code. Finding merit in the petition, the trial court
granted the same.

Taking into consideration the legislative intent and applying the rule of
reason, the Court hold that Paragraph 2 of Article 26 should be interpreted
to include cases involving parties who, at the time of the celebration of the
marriage were Filipino citizens, but later on, one of them becomes
naturalized as a foreign citizen and obtains a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the marriage. To rule
otherwise would be to sanction absurdity and injustice. Where the
interpretation of a statute according to its exact and literal import would
lead to mischievous results or contravene the clear purpose of the
legislature, it should be construed according to its spirit and reason,
disregarding as far as necessary the letter of the law. A statute may
therefore be extended to cases not within the literal meaning of its terms,
so long as they come within its spirit or intent.

If we are to give meaning to the legislative intent to avoid the absurd


situation where the Filipino spouse remains married to the alien spouse
who, after obtaining a divorce is no longer married to the Filipino spouse,
then the instant case must be deemed as coming within the contemplation
of Paragraph 2 of Article 26.

In view of the foregoing, we state the twin elements for the application of
Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino


citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him


or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce
is obtained abroad by the alien spouse capacitating the latter to remarry.

If the marriage is between two Filipinos and one of them obtains an absolute divorce
abroad after he has been naturalized as a citizen of a foreign country where absolute
divorce is recognized, such naturalized foreigner, who was formerly a Filipino, can come
back to the Philippines and validly remarry. The nationality rule shall apply to him.
Article 26 will not apply but the law of the country where he was naturalized (Recio v.
Garcia, supra). In the event that it is the Filipino who obtains the foreign absolute
divorce, such divorce will not be recognized here (Republic v. Iyoy, 407 SCRA 508).

Garcia vs. Recio [G.R. No. 138322, October 2, 2002]

FACTS: Rederick Recio, a Filipino, got married to Editha Samson, an


Australian citizen, but the marriage was dissolved by a divorce decree on
May 18, 1989 issued by an Australian family court. On June 26, 1992,
Rederick became an Australian citizen and got married to Grace on
January 12, 1994. They lived separately without judicial decree. On March
3, 1998, she filed a complaint for declaration of nullity of her marriage
with Rederick on the ground of bigamy stating that prior to the marriage,
she did not know that her husband had a previous marriage. On July 7,
1998, he was able to obtain a decree of divorce from her, hence, he prayed
in his answer to the complaint that it be dismissed on the ground that it
stated no cause of action. The court dismissed the case on the basis of the
divorce which dissolved the marriage and recognized in the Philippines.

ISSUE: Whether the divorce between Editha Samson and himself was
proven

HELD: No, Philippine law does not provide for absolute divorce; hence,
our courts cannot grant it. A marriage between two Filipinos cannot be
dissolved even by a divorce obtained abroad, because of Articles 15 and
17 of the Civil Code. (Tenchavez vs. Escano, 15 SCRA 355; Barretto
Gonzalez vs. Gonzalez, 58 Phil. 67). In mixed marriages involving a
Filipino and a foreigner, Article 26 of the Family Code allows the former
to contract a subsequent marriage in case the divorce is validly obtained
abroad by the alien spouse capacitating him or her to remarry. (Van Dorn
vs. Romillo, Jr., 139 SCRA 139;
Pilapil vs. Ibay-Somera, (174 SCRA 653)

A divorce obtained abroad by a couple, who are both aliens, may be


recognized in the Philippines, provided it is consistent with their
respective national laws. (Van Dorn vs. Romillo, supra.). The same must
be proved as a fact according to the rules of evidence.

Therefore, before a foreign divorce decree can be recognized by our courts,


the party pleading it must prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it. Presentation solely of the
divorce decree is insufficient. (Garcia vs. Recio, supra.).

Republic vs. Crasus L. Iyoy, [G.R. No. 152577, September 21, 2005]

Crasus Iyoy and Fely Ada Rosal-Iyoy got married in Cebu City. They had
five children. Fely went to the USA in 1984 where after one year, she sent
a letter to her husband requesting him to sign the divorce papers. In 1985,
she got married to an American citizen. Crasus filed a complaint to declare
their marriage void on the ground of psychological incapacity invoking
Articles 68, 70 and 72 of the Family Code. It was also alleged that she got
married during the existence of their marriage. Fely contended that she is
no longer governed by Philippine law considering that she was an
American citizen as early as 1988. She alleged that after securing divorce
from her husband, she married an American citizen and acquired
American citizenship. Hence, she argued that her marriage was valid
because now being an American citizen, her status is governed by her
present national law. The RTC declared the marriage of Crasus and Fely
void.

As it is worded, Article 26, paragraph 2, refers to a special situation


wherein one of the married couples is a foreigner who divorces his or her
Filipino spouse. By its plain and literal interpretation, the said provision
cannot be applied to the case of respondent Crasus and his wife Fely
because at the time Fely obtained her divorce, she was still a Filipino
citizen. Although the exact date was not established, Fely herself admitted
in her Answer filed before the RTC that she obtained a divorce from
respondent Crasus sometime after she left for the United States in 1984,
after which she married her American husband in 1985. In the same
Answer, she alleged that she had been an American citizen since 1988. At
the time she filed for divorce, Fely was still a Filipino citizen, and
pursuant to the nationality principle embodied in Article 15 of the Civil
Code of the Philippines, she was still bound by Philippine laws on family
rights and duties, status, conditions, and legal capacity, even when she was
already living abroad. Philippine laws, then and even until now, do not
allow and recognize divorce between Filipino spouses. Thus, Fely could
not have validly obtained a divorce from Crasus. Edelina Ando married
Japanese National Yuichiro Kobayashi. In Japan, Yuichiro Kobayashi was
validly granted a divorce. Believing in good faith that the divorce
capacitated her to remarry, Edelina married Masatomi Ando. Edelina
applied for the renewal of her Philippine passport to indicate her surname
as Ando but was told at the DFA that the same cannot be issued to her
until she can prove by competent court decision that her marriage with her
said husband Masatomi is valid until otherwise declared. Edelina should
have filed a petition for the judicial recognition of her foreign divorce
from her first husband with respect to her prayer for the recognition of her
second marriage as valid.
The presentation solely of the divorce decree is insufficient;
both the divorce decree and the governing personal law of
the alien spouse who obtained the divorce must be proven.
Philippine courts do not take judicial notice of foreign laws
and judgment. The law on evidence requires that both the
divorce decree and the national law of the alien must be
alleged and proven and like any other fact.

There appears to be insufficient proof or evidence presented on record of


both the national law of her first husband, Kobayashi, and of the validity
of the divorce decree under that national law. Any declaration as to the
validity of the divorce can only be made upon her complete submission of
evidence proving the divorce decree and the national law of her alien
spouse, in an action instituted in the proper forum.

Vda. De Catalan V. Catalan-Lee, G. R. No. 183622 [February 08, 2012]

FACTS: Orlando B. Catalan, a naturalized American citizen, allegedly


obtained a divorce in the United States from his first wife, Felicitas Amor.
He then contracted a second marriage with petitioner.

When Orlando died intestate in the Philippines, petitioner filed with the
RTC a Petition for the issuance of letters of administration for
her appointment as administratrix of the intestate estate. While the case
was pending, respondent Louella A. Catalan-Lee, one of the children of
Orlando from his first marriage, filed a similar petition with the RTC. The
two cases were consolidated.

ISSUE: Whether the divorce obtained abroad by Orlando may be


recognized under Philippine jurisdiction

HELD: Yes. Under the principles of comity, Philippine jurisdiction


recognizes a valid divorce obtained by a spouse of foreign nationality.
Aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law.
Nonetheless, the fact of divorce must still first be proven by the divorce
decree itself. The best evidence of a judgment is the judgment itself.
Under Sections 24 and 25 of Rule 132, a writing or document may be
proven as a public or official record of a foreign country by either (1)
an official publication or (2) a copy thereof attested by the officer having
legal custody of the document. If the record is not kept in the Philippines,
such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine Foreign Service stationed
in the foreign country in which the record is kept and (b) authenticated by
the seal of his office.

Moreover, the burden of proof lies with the party who alleges the
existence of a fact or thing necessary in the prosecution or defense of an
action. In civil cases, plaintiffs have the burden of proving the material
allegations of the complaint when those are denied by the answer; and
defendants have the burden of proving the material allegations in their
answer when they introduce new matters. It is well-settled in our
jurisdiction that our courts cannot take judicial notice of foreign laws. Like
any other facts, they must be alleged and proved.

It appears that the trial court no longer required petitioner to prove the
validity of Orlandos divorce under the laws of the United States and the
marriage between petitioner and the deceased. Thus, there is a need to
remand the proceedings to the trial court for further reception of evidence
to establish the fact of divorce.

It is imperative for the trial court to first determine the validity of the
divorce to ascertain the rightful party to be issued the letters of
administration over the estate of Orlando. Petition is partially granted.
Case is remanded to RTC.

Corpuz v. Sta. Tomas, G.R. No. 186571, 11 August 2010

FACTS: Petitioner Gerbert R. Corpuz was a former Filipino citizen who


acquired Canadian citizenship through naturalization. He married
respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig City. Due to work
and other professional commitments, Gerbert left for Canada soon after
the wedding. A few months later, he returned to the Philippines to surprise
Sto. Tomas but was shcoked to diacover that the latter was having an
affair with another man. He then went back to Canada to file for divorce
which was granted. Two years after the divorce, he found another Filipina.
He went to Pasig City Registry Office and registered the Canadian divorce
decree. He was informed that the marriage between him and Sto. Tomas
still subsists in the Philippine law. The foreign divorce decree must first be
judicially recognized by a competent Philippine court. He filed a petition
for judicial recognition of a foreign divorce and/or declaration of marriage
as dissolved.

The RTC denied the petition and stated that Corpuz is not the proper party
to institute the action for judicial recognition of the foreign divorce decree
as HE IS A NATURALIZED CANADIAN CITIZEN. It further stated that
only the Filipino spouse can avail of the remedy, under the 2nd par of
Article 26 of Family Code.

RULING: The rationale behind the second paragraph is to avoid an


absurd situation where the Filipino spouse remains married to the foreign
spouse while the latter was capacitated to remarry. The RTC was correct
in limiting the applicability of the provision for the benefit of the Filipino
spouse. Only the Filipino spouse can invoke the 2nd par; the alien spouse
claims no right under this provision.

HOWEVER, the unavailability of the second paragraph of Article 26 of


the Family Code to aliens does not necessarily strip Gerbert of legal
interest to petition the RTC for the recognition of his foreign divorce
decree. The foreign divorce decree itself, after its authenticity and
conformity with the alien's national law have been duly proven according
to our rules of evidence, serves as a presumptive evidence of right in favor
of Gerbert, pursuant to Section 48, Rule 39 of the Rules of Court which
provides for the effect of foreign judgments. n a divorce situation, we have
declared, no less, that the divorce obtained by an alien abroad may be
recognized in the Philippines, provided the divorce is valid according to
his or her national law. In Gerberts case, since both the foreign divorce
decree and the national law of the alien, recognizing his or her capacity to
obtain a divorce, purport to be official acts of a sovereign authority,
Section 24, Rule 132 of the Rules of Court comes into play. This Section
requires proof, either by (1) official publications or (2) copies attested by
the officer having legal custody of the documents. If the copies of official
records are not kept in the Philippines, these must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in the
Philippine Foreign Service stationed in the foreign country in which the
record is kept and (b) authenticated by the seal of his office. The records
show that Gerbert attached to his petition a copy of the divorce decree, as
well as the required certificates proving its authenticity, but failed to
include a copy of the Canadian law on divorce. Under this situation, we
can, at this point, simply dismiss the petition for insufficiency of
supporting evidence, unless we deem it more appropriate to remand the
case to the RTC to determine whether the divorce decree is consistent with
the Canadian divorce law.

We deem it more appropriate to take this latter course of action, given the
Article 26 interests that will be served and the Filipina wife's (Daisylyn's)
obvious conformity with the petition. The petition was granted.

HOW CAN THE FOREIGN DIVORCE BE RECOGNIZED IN THE


PHILIPPINES?

It is not a simple matter of presenting a copy of foreign divorce decree to a Philippine


government office.

Recognition is a judicial process where both the foreign divorce and the foreign divorce
law need to be proven in Court. One will need to file a Petition for Recognition of
Foreign Divorce with the Regional Trial Court in the Philippines.

WHAT ARE THE DOCUMENTS TO PREPARE?

1. Philippine marriage certificate/record if the marriage was in the country;


2. Official marriage certificate/record from the foreign country if the marriage was
abroad;
3. Report of Marriage of a Filipino married abroad (if one was filed with the DFA);
4. Official copies of your foreign divorce documents;
5. Certified copy of the foreign countrys divorce law;
6. Proofs of citizenship.

Note that this is a general list. Depending on the particular foreign


country involved, and depending on the particular case, there may be other
documents necessary. This is because different countries have different
divorce processes and different kinds of marriage and divorce documents.

For it to accept these documents, the Court needs to be assured that they are genuine.

The Philippine documents will need to have been officially certified by the correct
government office (Civil Registrar/Philippines Statistics Authority/Department of
Foreign Affairs/etc.)

The foreign documents, on the other hand, will need to be certified by the correct foreign
office and they will need to be authenticated by the Department of Foreign Affairs or the
Philippine embassy in the foreign country. If a foreign document is not in English, then
its certified English translation is also needed and this also has to be authenticated by the
DFA.

WHAT IS THE COURT PROCESS FOR THE RECOGNITION OF FOREIGN


DIVORCE?

After gathering the facts and the needed documents, the lawyer will draft the Petition for
Recognition of Foreign Divorce which needs to be signed by the lawyer and sworn to by
the petitioner. This Petition will then be filed with the Regional Trial Court in the correct
city or province. Attached to the Petition will be copies of the relevant documents.

The testimony of a witness will be through a judicial affidavit. A judicial affidavit is


used in order to speed up the trial. In a judicial affidavit, the lawyers questions and the
answers of the witness are set into writing and notarized before the hearing. This way, no
matter how long the written testimony is, under her lawyers guidance, the witness will
simply identify and affirm this judicial affidavit in Court in order to complete her direct
testimony. She can then be cross-examined by the government lawyer to verify her
statements. On cross-examination, she will be asked follow up questions about her
marriage and divorce.

After all the evidence is submitted, the lawyer will submit to the RTC a legal document
known as a Formal Offer of Evidence and also a final Memorandum. Absent active
opposition by other parties, we will then await the Courts Decision. The waiting after
these submissions would probably take a few months because of the clogged court
dockets.

Assuming it is favorable, the Decision can thereafter be registered with the civil registrar
and the Philippine Statistics Authority for annotation on the marriage record.

PROVING THE UNWRITTEN LAW OF A FOREIGN COUNTRY

What if the marriage law of a foreign country in question is unwritten, how can it be
proved? The former Section 45 of Rule 130, Rules of Court, before the amendments of
the rules on evidence on July 1, 1989, provides as follows:

The oral testimony of witnesses, skilled therein, is admissible as evidence


of the unwritten law of a foreign country, as are also printed and published
books of reports of decisions of the courts of the foreign country, if proved to
be commonly admitted in such courts.

Unwritten law are those laws in common-law countries which grew out of custom and
which, without having been reduced to writing in the beginning, were handed down by
tradition from one generation to another, and accepted by them as the law. Whatever has
existed for a long period of time, and is in harmony with the moral judgment of the
community is regarded as having the force of law, and the judicial authority is bound to
recognize it as such, even though it has never been expressed in a legal enactment.
Unwritten foreign laws may be proved by the evidence of witnesses who are competent
to testify on the question. Thus, the common law of another state may be proved by the
testimony of lawyers, jurists, and others who are shown to have knowledge of such laws.
Such evidence is regarded as the best evidence under the circumstances.

If the interpretation of the statute and its application to the particular case require
knowledge of the judicial decisions and local practice, the face of the statute must be
supplemented by evidence from experts familiar with the law of the jurisdiction in
question. However, there is authority for the view that the reports of decisions in such
jurisdictions are the best evidence of the construction placed upon a specific statute.

SUMMARY

If the husband obtained a divorce decree from his country, the implication is that you are
allowed to remarry, provided you file first for PETITION FOR RECOGNITION OF
FOREIGN DIVORCE DECREE.

The divorce must be proven in court. The presentation if the divorce decree is insufficient.
Proof of its authenticity and due execution must be presented. This necessarily entails
proving the applicable laws of the jurisdiction where the foreigner-spouse (who could be
a former Filipino) is a national. One of the requirements under Article 26 of the Family
Code of the Philippines is that the decree of divorce must be valid according to the
national law of the foreigner.

In a petition for recognition, the court will require the presentation of expert witnesses
who can (1) translate the divorce decree if it is written in a language other than English,
or (2) testify on the law of the country where the divorce was granted.

It is important that the official divorce decree, which must be final and executory, and the
applicable laws of the jurisdiction where the foreigner-spouse is a national must be
authenticated.